We need to consider the impact of Covid 19 on the legal profession and the delivery of legal services. And in this, just as in the physical transmission of the disease, the underlying weakness of the body politic will play a major part. For us as individuals, this is not a good time to suffer from a variety of illnesses associated with older age. It is no different for access to justice. We must ask whether existing formats of legal service delivery are robust enough to weather Covid 19.
In each jurisdiction, there will be a number of relevant factors whose individual and collective effect must be considered. The main ones will include the state of the legal profession; the public subsidy of services which individuals cannot afford; and the systems of public adjudication in courts and tribunals. There is little point in generalising about these: we need some granular analysis of the impact of all three in particular jurisdictions.
Let’s begin with England and Wales. If we follow the regulators ‘there are currently 148,770 practising solicitors’ (as at April 2020) and 16,982 barristers in independent practice (in 2019). That is a combined total of around 165,000. This will be an underestimate of the actual numbers working as lawyers because remarkably little legal activity actually requires regulation. However, these figures will serve to show trends. The numbers over time are actually rather good for the legal profession. The growth of the legal profession has continued despite the financial crash of 2008. If, for example, we take the figures of practising solicitors and barristers five years ago, the respective totals were 132,087 and 15,899, a combined total of around 148,000. Thus, there has been an increase of around 10 per cent of practising lawyers on a common definition over the last five years.
The statistics for the Bar are revealing in terms of the pressure for entry. More women than men are now called to the Bar – the opening stage of qualification – and significantly more men and women from Black and Minority Ethnic backgrounds (957 to 687). Women have entered the inner citadel represented by the grant of tenancies, being in the majority over the last four years for which figures are available. Those who are Black and Minority Ethnic have not been so successful (49 to 258 for 2017/18). Statistics for solicitors are not so dramatic but the same trends are there.
If we pull back the camera to a longer focus, then the figures suggest that the legal profession has (belatedly or otherwise) absorbed the opening up of tertiary education to young women that began in the 1960s and 70s. It has yet to respond fully to the expansion in terms of class and race over the last twenty years.
The legal profession intersects with access to justice in a number of ways, including the public funding of some of its work. The vast majority of this is, of course, for private clients. A major element represents the global role of the City of London for whom a researcher recently reported: ‘In terms of economic contribution, in 2016 legal activities added £24.4bn to the UK’s national accounts … The legal services sector also makes an important contribution to the UK’s trade activity – in 2015, UK legal activities (made up of Law Society, legal services, and commercial bar association services) amassed exports of around £4.1bn, and contributed a trade surplus of £3.4bn.’
It is difficult to say exactly what percentage of the legal profession’s income comes from public money (civil, administrative and criminal, prosecution and defence) and is, therefore, vulnerable to cuts in expenditure. The only reliable figure for the Bar comes from as far back as 1989: it was then 27 per cent (Bar Council Strategy Group Strategies for the Future, p18). The Law Society no longer has the collective insurance that allowed figures to be deduced (and they were always a bit odd) but the figure used to hover around 10 per cent before the recent legal aid cuts. So, let us estimate conservatively around, say, 20 per cent for the Bar and 8 per cent for solicitors. And falling.
The extent of the legal profession’s dependence on public funding is important because it is in the process of being significantly cut. The Ministry of Justice summarised the process in February 2019: ‘In 2013, following a long period of expansion of legal aid beyond its initial intention (spending just over £2bn per annum) … the Coalition Government … implemented a fundamental reform of the scope of, eligibility for, and fees paid under, legal aid. These changes … have combined to deliver a system of legal aid which paid out £1.6bn last year.’ That is a cut of 25 per cent per year in the profession’s income (ignore some methodological technicalities).
Added to the effect of legal aid cuts are reductions in court expenditure. The prime aim of the Government’s modernisation programme is to reduce its own expenditure and staffing. As reported by the National Audit Office in September 2019 this is currently to provide annual expected savings of £244m by 2024-5 and reductions of 16,129 staff. The achievement of such large cuts is a major challenge and the suspicion of practitioners is that a variety of stratagems have been used to buff up savings – including the creation of hearing backlogs and consequent deferral of cost. Covid 19 has worsened these but, as news outlets have noted: ‘The mounting backlog in the criminal court system predates the pandemic. At the end of 2019 the backlog of total cases had reached 37,434 — compared with 33,113 a year earlier — and judges were struggling to fix trial dates.’
Legal aid cuts and court delays impact directly on particular sectors of the legal profession. The same media source reported, ’A junior barrister who did not want to be named said: “Many of us at the junior end are really struggling. A lot of the work which we would normally do is now being picked up by more senior barristers. The Bar Council surveyed 3,500 barristers and found that 56 per cent could not survive another six months under current circumstances.‘ The legal professions are understandably alarmed. Covid 19 makes the situation even more desperate as hearings are postponed and prosecutions avoided. The Law Society Gazette reported, ‘Simon Davis, president of the Law Society, said: ‘These statistics come as no surprise: our criminal justice system is at breaking point. It simply does not have the resources to function effectively. The future integrity of our justice system depends on the whole system working effectively and efficiently. This means we need additional funding across the board: for police and prosecutors, but also for courts and the defence.’
The government has made ad hoc payments to support the legal advice sector during the pandemic, most notably £5.4m ($6.2m or €6.05m) on 4th May.
This additional funding will not, however, impact on the legal sector more widely – for whom there will be more potential hammer blows. Technology will reduce the cost of court hearings – that is the very reason why it is being introduced. Barristers, with their focus on oral advocacy, are going to be particularly hurt. And the widely expected post-Covid recession may increase insolvency, bankruptcy and some contract work but, overall, it is likely to reduce income from business and property transactions – including the domestic house market which has just about kept traditional solicitors High Street practice on the road. And, though a Conservative Government is temporarily in thrall to Keynesian notions of the role of the state in support of the national economy, the bill will be arriving soon – from the same debt collectors who imposed the last decade of financial austerity.
In these circumstances, it is understandable that the leaders of the legal profession are screaming for more public subsidy. And they are correctly pointing out that it is the youngest and most diverse of their actual and prospective members who will suffer most. But, actually, our thinking may have to change. The old paradigm of legal aid which took private practice as the norm and promised it at public cost is broken. Case by case ‘judicare’ funding long ago proved too expensive for most other jurisdictions – at least to the extent that it has been kept going in England and Wales (dependence is less in Scotland). The danger is that government will feel that it cannot afford to subsidise the career of young lawyers as a byproduct of funding for the whole profession in the way that it has done. And the paradigm of courts has to shift from the primacy of orality to more reliance on the provision of pre-prepared (digital not paper) argument (albeit supplemented by oral contributions).
The funding for access to justice has to be much more targeted and based on a spine of provision that builds on not for profit providers like the Citizens Advice Service and law centres as well as specialist contracted services from profits and not for profits. And, that provision itself has to be built on the strategic implementation of technology (albeit supplementing individual and expert assistance) in a way that it is not really possible in a funding system based on disparate private providers.
The domestic legal profession has no chance of expanding in the way that has since the 2008 crisis. That will be the case whatever the government does. And it calls for a response that goes beyond despair. The legal profession will unavoidably contract – to the disappointment in particular of those from disadvantaged backgrounds who have only had a belated chance of entrance. And in the light of that, the professional bodies and the government need to develop specifically funded routes for new entrants into the profession (as, for a while, the Legal Services Commission did) and to ensure that they increase its diversity. One way of doing this would be along the lines of the Legal Education Foundation’s Justice First Fellowships. If nothing is done, the contraction will not only be painful, it will be significantly unfair. Funding for access to justice must be detached from support for the traditional forms of legal practice. It will need to be more imaginative; more integrated with technology; and, let it be acknowledged, it ain’t going to be possible to save more money from cuts.
Statement of Interest: The Legal Education Foundation, praised in the last paragraph, funds this website.